Falk & Tilley: Open Letter to UN Ambassador Nikki Haley on Our Report on Apartheid in Israel

Falk & Tilley: Open Letter to UN Ambassador Nikki Haley on Our Report on Apartheid in Israel

Falk & Tilley: Open Letter to UN Ambassador Nikki Haley on Our Report on Apartheid in Israel

[PHOTO: Ambassador Nikki Haley speaking at AIPAC convention, March 27, 2017. When she was Governor of South Carolina, Haley had been the first to sign into law anti-BDS legislation. See excerpts from her AIPAC speech below*]

By Richard Falk and Virginia Tilley, The Nation:

 Dear Madam Ambassador:

 We were deeply disappointed by your response to our report, Israeli Practices Toward the Palestinian People and the Question of Apartheid, and particularly your dismissal of it as “anti-Israeli propaganda” within hours of its release. The UN Economic and Social Commission for West Asia (ESCWA) invited us to undertake a fully researched scholarly study. Its principal purpose was to ascertain whether Israeli policies and practices imposed on the Palestinian people fall within the scope of the international-law definition of apartheid. We did our best to conduct the study with the care and rigor that is morally incumbent in such an important undertaking, and of course we welcome constructive criticism of the report’s method or analysis (which we also sought from several eminent scholars before its release). So far we have not received any information identifying the flaws you have found in the report or how it may have failed to comply with scholarly standards of rigor.

Instead, you have felt free to castigate the UN for commissioning the report and us for authoring it. You have launched defamatory attacks on all involved, designed to discredit and malign the messengers rather than clarify your criticisms of the message. Ad hominem attacks are usually the tactics of those so seized with political fervor as to abhor rational discussion. We suppose that you would not normally wish to give this impression of yourself and your staff, or to represent US diplomacy in such a light to the world. Yet your statements about our study, as reported in the media, certainly give this impression.

[The report is available here.]

We were especially troubled by the extraordinary pressure your office exerted on the UN secretary general, António Guterres, apparently inducing him first to order the report’s removal from the ESCWA website and then to accept the resignation of ESCWA’s distinguished and highly respected executive secretary, Rima Khalaf, which she submitted on principle rather than repudiate a report that she believed fulfilled scholarly standards, upheld the principles of the United Nations Charter and international law, and produced findings and recommendations vital for UN proceedings.

Instead of using this global forum to call for the critical debate about the report, you used the weight of your office to quash it. These strident denunciations convey a strong appearance of upholding an uncritical posture by the US government toward Israel, automatically and unconditionally sheltering Israel’s government from any criticism at the UN, whether deserved or not, from the perspective of international law. Such a posture diminishes the US’s reputation as a nation that upholds the values of truth, freedom, law, and justice, and that serves the world community as a regional and global leader. It also shifts the conversation away from crucial substantive concerns.

You fail to consider that Israeli leaders have themselves warned of the apartheid features of their policies. It may have been that the word “apartheid” alone was enough to trigger your response, a reaction undoubtedly abetted by Israel’s instantaneous denunciation of our report. In following Israel’s public lead, however, you fail to consider that Israeli leaders have themselves grasped and warned of the apartheid features of their policies for decades. The widely admired Yitzhak Rabin, twice Israel’s prime minister, once confided to a TV journalist, “I don’t think it’s possible to contain over a long term, if we don’t want to get to apartheid, a million and a half [more] Arabs inside a Jewish state.” Prime ministers Ehud Olmert and Ehud Barak both warned publicly that Israel was at risk of becoming an apartheid state and cautioned their constituencies about what would happen to Israel if the Palestinians realized this and launched an anti-apartheid struggle. Former Israeli attorney general Michael Ben-Yair has stated flatly, “we established an apartheid regime in the occupied territories.” These prominent Israelis were clear-headed observers of their own country’s policies as well as patriots, and it was their cautions, as much as any other source, that inspired ESCWA member states to consider that the possibility of an apartheid regime existing in this setting must be taken seriously and so commissioned the report now under attack.

It is therefore wholly inappropriate and wrong for you to charge that, simply by accepting this commission, we as authors were motivated by anti-Semitism. The reverse is true. To clarify this claim, we call your attention to two features of the report that we hope will lead you to reconsider your response.

It is wrong for you to charge that, simply by accepting this commission, we were motivated by anti-Semitism.

Firstly, the report carefully confines its working definition of apartheid to those provided in the 1973 Convention on the Suppression and Punishment of the International Crime of Apartheid and the 2002 Rome Statute of the International Criminal Court. It does not rely on definitions developed in polemics about the conflict or taken casually from online sources. As the 1973 Convention and the Rome Statute are part of the same body of law that protects Jews, as well as all people in the world, from discrimination, this authoritative definition should not be set aside. Any responsible critique must therefore engage with these legal definitions, and the larger body of international human-rights jurisprudence in which they are situated, so as to address the report for what it actually says rather than concocting a straw man that can be easily dismissed. We hope you will reconsider the report in this light.

Secondly, the member states of ESCWA requested that a study be commissioned to examine whether Israel’s apartheid policies encompassed the Palestinian people as a whole. This meant that, as authors, we were asked to consider Palestinians living in four geographic regions within four legal categories or “domains”: those living in the occupied territories, those resident in Jerusalem, those living as citizens within Israel, and those living in refugee camps or involuntary exile. For each domain, we found that Israeli policies and practices are, by law, internally discriminatory. But more importantly, we found that all four operate as one comprehensive system that is designed to dominate and oppress Palestinians in order to preserve Israel as a Jewish state. It is this whole system of domination, too long misinterpreted by treating Palestinians as situated in unrelated categories, that generates the regime of domination that conforms to the definition of apartheid in international law. Moreover, it is this system that has undermined, and will continue to undermine, the two-state solution to which the United States has committed its diplomatic prestige over the course of several prior presidencies. Appraising the viability of this diplomatic posture in light of findings in this report would, we propose, be crucial for the credibility of US foreign policy and should not be blocked by political considerations.

We hoped our report would give rise to discussion of all these issues. Especially, we hope that its findings will inspire a review of this question by authoritative legal bodies such as the International Court of Justice. We did not seek a shouting match. We therefore now respectfully ask, against this background, that our report be read in the spirit in which it was written, aiming for the safety, security, and peace of everyone who lives in territory currently under Israel’s control. As the report’s authors, this was our moral framework all along, and we still retain the hope that the serious questions at stake will not be buried beneath an avalanche of diversionary abuse of our motives and character. Charges of crimes against humanity should not be swept to one side out of deference to political bonds that tie the United States and Israel closely together, or for reasons of political expediency. Such machinations can only weaken international law and endanger us all.

Sincerely,

Richard Falk,
Professor of International Law Emeritus, Princeton University

Virginia Tilley,
Professor of Political Science, Southern Illinois University

*Excerpts from Haley’s speech March 27, 2017 at the AIPAC convention, as reported by the Times of Israel

“And this ridiculous report, the Falk report, came out. I don’t know who the guy is, or what he’s about, but he’s got serious problems,” said Haley, lightly horrified. “Goes and compares Israel to an apartheid state?”

“So for anyone that says you can’t get anything done at the UN, they need to know there’s a new sheriff in town.”

“The first thing we do is we call the secretary general, and say, ‘This [report] is absolutely ridiculous. You have to pull it.’ The secretary general immediately pulled the report, and then the director has now resigned.”

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All of Israel’s settlements in the occupied West Bank and Syria’s Golan Heights are illegal under international law.

New US bill would punish settlement boycotters

New bill in Congress backed by AIPAC aims to thwart international measures to hold Israel accountable for settlements built on occupied Palestinian land.

Wisam HashlamounAPA images

US Senator Ben Cardin is once again trying to pass legislation designed to suppress the boycott, divestment and sanctions (BDS) movement for Palestinian rights.

During the last Congressional session, the Maryland Democrat succeeded in sneaking language into a must-pass trade bill making it a “principal negotiating objective” of the United States “to discourage politically motivated actions to boycott, divest from or sanction Israel” while negotiating trade deals.

This discouragement of BDS extended to boycotts of products originating from settlements in what the bill euphemistically referred to as “Israeli-controlled territories.” All of Israel’s settlements in the occupied West Bank and Syria’s Golan Heights are illegal under international law.

But with the Trump administration’s skepticism toward free trade deals and its withdrawal of the United States from the controversial Trans-Pacific Partnership, it seems unlikely that the United States in the near term will be leveraging anti-BDS pressure through trade negotiations as Cardin envisioned.

With BDS continuing to gain momentum, Cardin went back to the drawing board and introduced the Israel Anti-Boycott Act on 23 March, designed to coincide with the annual policy conference of the American Israel Public Affairs Committee.

The powerful Israel lobby group duly made the bill one of its top legislative priorities.

The Senate version of the bill – S.720 – currently has 18 cosponsors – 14 Republicans and four Democrats.

Its counterpart in the House – H.R.1697 – introduced by Illinois Republican Peter Roskam, has 91 co-sponsors at present, about two-thirds of them Republicans.

The bill opposes the creation of a database of Israeli settlement companies by the UN Human Rights Council and any efforts to boycott those companies’ products.

According to Cardin and the other original sponsors of the Israel Anti-Boycott Act, the bill also seeks to “prevent the implementation of similar ‘blacklists’ or boycotts in the future.”

It aims to do so in a heavy-handed manner: by imposing governmental sanctions – denial of loans, fines and even potentially jail time – on companies complying with calls from the UN Human Rights Council to boycott Israeli settlement products.

Shrewdly shrouded

If it becomes law, the bill could also sweep up in its broad ambit companies refusing to do business with Israeli settlements whatever their source of inspiration for doing so may be. These sanctions would also apply to potential future international governmental calls for a broader boycott of Israel.

The draconian nature of the bill is shrewdly shrouded. None of the above-mentioned sanctions are specified in the actual text of the bill.

Only by closely examining the underlying laws which would be amended by this bill does its intent become evident: to harshly punish those companies which exercise their First Amendment-protected right to engage in boycotts of Israeli settlement products.

The bill seeks to amend two laws – the Export Administration Act of 1979 and the Export-Import Bank Act of 1945 – to accomplish its aim.

The Export Administration Act is the primary law which makes it illegal for US corporations to comply with the Arab League boycott of Israel. The Department of Commerce maintains an Office of Anti-Boycott Compliance to ensure US corporations do not participate in the Arab League boycott and to fine those that do.

The Israel Anti-Boycott Act would amend this law to encompass “restrictive trade practices or boycotts fostered or imposed by any international governmental organization against Israel or requests to impose restrictive trade practices or boycotts by any international governmental organization against Israel.”

Even if a corporation was not responding directly to a call from an international governmental organization to boycott Israel or even settlement products, it could still run afoul of this bill if its actions are perceived to “have the effect of furthering or supporting” this boycott.

The potential penalties for violating this bill are steep: a minimum $250,000 civil penalty and a maximum criminal penalty of $1 million and 20 years imprisonment, as stipulated in the International Emergency Economic Powers Act.

The bill specifies that international governmental organizations include the United Nations and European Union, a clear indication the legislation is intended to counteract the limited steps the UN Human Rights Council has taken to catalog Israeli settlement products and the EU’s labeling – but not prohibition – of those products.

Protecting settlements

The bill also amends the Export-Import Bank Act to make it possible for the bank to “deny applications for credit” to corporations whose policies and actions “are politically motivated and are intended to penalize or otherwise limit commercial relations specifically with citizens or residents of Israel, entities organized under the laws of Israel, or the Government of Israel.”

The legislation refers back to the definition of BDS enshrined in law in the last congressional session to include “Israeli-controlled territories,” thereby making the harsh sanctions applicable to actions solely targeting Israeli settlements.

The bill concludes with a dubious stipulation that nothing in it “shall be construed to alter the established policy of the United States or to establish new United States policy concerning final status issues associated with the Arab-Israeli conflict, including border delineation, that can only be resolved through direct negotiations between the parties.”

However, by establishing such stringent penalties for corporations that respond to nascent international governmental organizations’ efforts to end trade in Israeli settlement products, the bill does in fact attempt to dramatically alter US policy.

Growing consensus

For the past 50 years, official US policy has held that Israel’s settlements are violations of the Fourth Geneva Convention and illegal under international law. The bill seeks to undermine this determination by penalizing companies refusing to do business with Israeli settlements and conversely attempts to legitimize their status.

Under existing law, corporations can only be penalized for adhering to the Arab League boycott of Israel. Cardin’s bill would vastly widen this net by also ensnaring corporations that support international governmental organizations’ boycotts of Israeli settlement products or even those which are perceived as furthering those boycotts.

Last year, Human Rights Watch urged that all corporations had to end all business in or with settlements in order to comply with their human rights obligations, and that governments are responsible for taking steps to discourage settlements.

“Settlement businesses unavoidably contribute to Israeli policies that dispossess and harshly discriminate against Palestinians, while profiting from Israel’s theft of Palestinian land and other resources,” Arvind Ganesan, director of the group’s business and human rights division, said.

There is also a growing consensus among international legal scholars that trade in settlement goods violates international law.

Activists are organizing against this bill because they believe that if passed, it could stymie campaigns by the Palestine solidarity movement to pressure corporations to cut ties to Israel or even with Israeli settlements.